PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK.

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1 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK. Technical Guide Survivor s Discretionary Trust Deed

2 2 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK INTRODUCTION. This guide has been written to explain what a Survivor s Discretionary Trust is, and how to place a Legal & General protection policy in our Survivor s Discretionary Trust. We ve tried to use plain language to keep this guide easy to understand. You ll find explanations of any technical terms we use in the glossary on page 8 of this document. Whenever terms covered in the glossary appear in the main text, we ve highlighted them in blue. We also have a range of online support to help you place your policy in trust. TRUST INFORMATION. WHAT IS A SURVIVOR S DISCRETIONARY TRUST? A Survivor s Discretionary Trust is a legal arrangement which allows the owners of a life policy (the settlors) to give their policy to a trusted group of people (the trustees), who look after it. At some time in the future they pass it on to some people from a group that the settlors have decided (the beneficiaries). The trustees have discretion about which of the beneficiaries to pass it on to, how much each will get, and when. However, if one of the settlors survives the first to die by 30 days, the trust fund will pass to the surviving settlor. When a life policy is looked after in this way, it is said to be in trust. The life policy which is in trust, and any payment received from the life policy are called the trust fund. This guide assumes that a Legal & General life policy will be the only asset in the trust. WHAT ARE SOME OF THE MAIN BENEFITS OF USING A SURVIVOR S DISCRETIONARY TRUST? Using a Survivor s Discretionary Trust for a life policy has lots of practical and financial benefits. For example: Inheritance Tax It should help to ensure that if you both die within 30 days of each other, any money paid out from the life policy would not be part of your estate, helping to minimise Inheritance Tax. Tax is covered in more detail on pages 6 and 7. Quicker pay out It should help to ensure that the money paid out from the life policy can be paid to the right people quickly, without the need for lengthy legal processes. When you die, your personal representatives will need to obtain probate so that they have the authority to deal with your estate. In England and Wales either a grant of probate or grant of letters of administration is issued to your personal representatives. This process takes time and if you die without having made a will it takes even longer. Since the trustees are the owners of a policy placed in trust they do not have to go through this process in order to make a claim. Control of funds By placing your policy in trust, you can indicate who you want the proceeds to be paid to. A trust can control when the money from the life policy will be paid out. This can ensure that children receive some financial support from the money, but do not have full access to it. Our draft Survivor s Discretionary Trust deed makes placing a life policy in trust easy, and Legal & General provide this service to our customers for free. WHO S INVOLVED IN A SURVIVOR S DISCRETIONARY TRUST? There are three important roles: The settlors The people giving away their life policy are called the settlors. Once the settlors have put their life policy into trust they no longer personally own it and have limited rights to say how it s dealt with. However, the settlors are still usually responsible for paying the policy premiums, and are two of the trustees. The settlors choose the trustees and the beneficiaries, and can give the trustees guidance on how they would like the trust fund to be used via a letter of wishes. The beneficiaries The people who can receive payment from the trust fund are called the beneficiaries. The people who may be a beneficiary are listed in the trust deed, but no beneficiary is guaranteed to receive any of the trust fund. The trustees The trustees take legal ownership of the trust fund from the settlors. They then look after the trust fund, and, following a claim on the policy will make arrangements for payments to the beneficiaries. The trustees have discretion about which beneficiaries named in the trust will receive the trust fund and when. However, they must act in the best interests of the beneficiaries at all times and can only do what is allowed in the trust deed.

3 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK 3 SETTING UP A SURVIVOR S DISCRETIONARY TRUST WITH A LEGAL & GENERAL PROTECTION POLICY. WHAT ARE THE IMPORTANT DOCUMENTS? There are three key documents: The Survivor s Discretionary Trust deed This is the legal document that creates the trust. The settlors and the trustees must sign it. It names the parties involved, says what roles they have, and gives details of the life policy which is being put into trust. The provisions in the trust deed are the basis of the trust arrangement. The trustees must act according to the trust deed, and cannot do anything that the trust deed doesn t allow. The letter of wishes As the trustee will have lots of decisions to make, the settlors can provide a letter of wishes, to help explain what they would like to happen to the trust fund. Unlike the trust deed, the trustee does not have to follow the letter of wishes. However, trustees usually find it to be a helpful guide on how best to manage and distribute the trust fund to the beneficiaries. A draft is available from Legal & General at The policy documents These include the policy documentation, which contain all the important information about the life policy, which forms the trust fund. CAN ANY POLICY BE PUT IN LEGAL & GENERAL S SURVIVOR S DISCRETIONARY TRUST? Legal & General s Survivor s Discretionary Trust can only be used for joint life, first death Legal & General protection policies. The trust can be used for new or existing policies. It should not be used for policies for business assurance (e.g. key person or shareholder protection), Relevant Life Plans, or for a pension term assurance (e.g. Tax Efficient Life Insurance Plan ( TELIP )). For more details please speak with your financial adviser. WHAT IF I HAVE CRITICAL OR TERMINAL ILLNESS COVER? The Survivor s Discretionary Trust automatically makes you the beneficiary of any proceeds arising from a claim as a result of a critical or terminal illness as described in the policy (if your policy has those benefits). If you do not want to keep these benefits for yourself and would rather they were held for the beneficiaries of the trust then please sign the box(es) in clause 7 of Part B of the trust. CAN I GIVE THE TRUST A NAME? Yes. You can give the trust a name in clause 5 of Part B. You do not have to give the trust a name if you do not want to. CAN I EVER CANCEL THE TRUST? No, not usually. However, there may be circumstances when a policy can be taken out of trust. You should contact your legal adviser for advice.

4 4 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK TRUSTEE INFORMATION. WHAT ARE THE MAIN DUTIES OF A TRUSTEE? The trustees must understand the terms of the trust, and mustn t do anything that is not allowed by the trust or by the law. The trustees must act in the best interests of the beneficiaries, and exercise a high degree of care and honesty and must all agree when making trust decisions. The trustees must keep clear and accurate records and accounts of trust property and ensure that all tax, which the trust is liable for, is paid. Being a trustee is an important responsibility, however it is unlikely that the trustees will need specific detailed knowledge of trust law to enable them to act effectively. Usually, the trustees will not have much to do until the time comes to make a claim. The trustees can seek professional advice should the need arise. The key thing is that they act honestly and in the best interests of the beneficiaries. Further information for trustees is available in our separate guide, Your Guide to Being a Trustee. WHO CAN I APPOINT AS A TRUSTEE? Generally anyone, but the people appointed must be over 18 years of age and of sound mind. The trustees should be people who the settlors believes will act in the best interests of the beneficiaries. It is also a good idea for them to be resident in the United Kingdom for tax reasons. Solicitors and accountants can act as trustees but they will charge for their services. CAN I BE A TRUSTEE? Yes. The Survivor s Discretionary Trust automatically makes you a trustee. CAN I APPOINT ADDITIONAL TRUSTEES IN THE FUTURE? Yes, with our Survivor s Discretionary Trust the settlors have the power to appoint additional trustees at any time. After you die, the trustees will have the power to appoint additional trustees. HOW MANY TRUSTEES SHOULD I CHOOSE? It is a good idea to have at least two trustees at any time. For this reason, it is normally sensible to appoint at least two trustees in addition to yourself. WHAT HAPPENS IF A TRUSTEE DIES? If a trustee dies, the remaining trustees can still carry on with the role, but a replacement could be appointed. If the trustee was the last surviving trustee, their legal personal representatives will have the power to appoint additional trustees or take over as trustees themselves. WHAT CAN THE TRUSTEES DO IF I DON T PAY THE POLICY PREMIUMS? As legal owners of the policy, the trustees can arrange for the premiums to be paid but they are not obliged to make sure this happens or pay the premiums themselves. The trust will come to an end if, as a result of the premiums not being paid, the policy lapses with no value. WHAT HAPPENS IF A TRUSTEE NO LONGER WANTS TO BE A TRUSTEE? A trustee can retire from the trust with the consent of the other trustees, provided that there are at least two trustees following the retirement.

5 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK 5 HOW DO THE TRUSTEES MAKE A CLAIM? In the event of your death the trustees will need to send the following items to Legal & General s Customer Claims Department: 1. Survivor s Discretionary Trust deed (and any subsequent deeds) 2. The original policy documentation 3. A death certificate The address to send these items to is: Legal & General Customer Claims Department City Park The Droveway Hove East Sussex BN3 7PY Once the claim is accepted, the trustees will be paid by direct credit. For other claims, please call us on freephone: For terminal illness claims For critical illness claims We may record and monitor calls. BENEFICIARY INFORMATION. WHO IS AUTOMATICALLY A BENEFICIARY OF THE SURVIVOR S DISCRETIONARY TRUST? The Survivor s Discretionary Trust contains a list of the discretionary beneficiaries in clause 4 of Part B of the trust. This list includes: Your children or grandchildren (and their spouses or registered civil partners) Anyone descended from your mother or father (and those descendents spouses or registered civil partners) Anyone who may benefit from your residuary estate Any additional beneficiary you name as an Additional Beneficiary (for example, the name of a co-habitee) Any person or charity you later name in a deed of addition CAN WE BE BENEFICIARIES? With the Survivor s Discretionary Trust a surviving settlor will only benefit if they survive the first to die by 30 days. WHAT IF THE BENEFICIARIES ARE STILL UNDER 18 WHEN THE POLICY PROCEEDS ARE PAID OUT? The trustees will have the power to invest the proceeds, and may be able to make payments out to support the beneficiaries.

6 6 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK INHERITANCE TAX INFORMATION. Whilst a policy in the Survivor s Discretionary Trust will not usually form part of your estate for Inheritance Tax purposes, if one of the settlors survives the death of the first settlor by 30 days the proceeds are payable to the survivor and will form part of the survivor s estate. In addition, on some other occasions there is a potential for an Inheritance Tax charge to apply. These are summarised below, however if you are unsure about this or require more detail, you should discuss this with your adviser or a tax professional. ENTRY CHARGE FOR EXISTING POLICIES Where an existing policy is placed into a Survivor s Discretionary Trust an entry charge may apply. Currently, individuals have an annual gift exemption of 3,000 each. As such, if the open market value of a policy falls within the annual exemption (and provided that this allowance is not used for other gifts) there will be no entry charge. Where a term assurance policy with no surrender value is placed in trust, provided that the life assured is in good health the open market value of the policy for Inheritance Tax purposes is likely to be negligible. Therefore, even if the annual gift exemption did not apply, the tax charge on entry would be nil. For some policies, such as whole of life policies, the value of the policy for Inheritance Tax purposes is deemed to be the higher of the open market value of the policy (considered in the same way as described above) and the value of the premiums paid to date. It is unlikely to have a negligible value. If no exemption applies to the policy, the value of the policy should be added together with the value of all chargeable lifetime transfers made by you in the seven years immediately prior to setting up the trust. If this exceeds the nil rate band applicable at the time the trust is created, Inheritance Tax will be due on the excess value of the gift at the lifetime rate. The nil rate band is currently 325,000 each (up to and including the tax year 2017/18) and the lifetime rate is 20% if the trustees pay any tax (and an effective rate of 25% if you pay any tax). ENTRY CHARGE FOR THE PAYMENT OF PREMIUMS Inheritance Tax may be payable on premiums as they are considered to be a transfer of value. However, currently, individuals have an annual gift exemption of 3,000 each. If this exemption is not used for other gifts, and if the premiums paid fall within the annual exemption there will be no entry charges for premiums. In addition, individuals have an Inheritance Tax exemption for normal expenditure out of income. If premiums fall within this exemption there will be no entry charge. In order for the exemption to apply, it would need to be shown that the payment of premiums comes out of your income, that it leaves you with sufficient income to maintain your normal standard of living and that it was made as part of your normal expenditure. If an exemption does not apply, then the premiums will be chargeable lifetime transfers, and an entry charge may apply. Inheritance Tax will be due if the value of the premiums (after deducting any Inheritance Tax exemptions) together with the value of all chargeable lifetime transfers made by you in the seven years immediately prior to setting up the trust exceeds the applicable nil rate band. This will be due on the excess value of the gift at the lifetime rate. The nil rate band is currently 325,000 each (up to and including the tax year 2017/18) and the lifetime rate is 20% if the trustees pay any tax (or at an effective rate of 25% if you pay any tax). Example David and Tracey Smith take out a term assurance policy for 500,000 and the monthly premium is The value of the policy when they create the trust is nil as they are in good health. The value of the policy and the premiums are less than the combined annual gift exemption of 6,000 per year so they fall within their annual gift exemptions. The premiums are therefore not treated as chargeable transfers and an entry charge does not apply.

7 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK 7 PERIODIC CHARGE An Inheritance Tax liability may arise on each 10-year anniversary of the creation of the trust. The charge is based on the value of the property in the trust, which is referred to as relevant property. Before a claim is made, the value of the relevant property is based on the value of the policy, and as long as the life assured is in good health, the value of a term assurance policy for Inheritance Tax is likely to be negligible. A periodic charge may become payable when you die as the policy proceeds will then be in trust. The maximum rate of tax that can be charged on the relevant property is currently 6%. This applies to the value of the assets which exceed the nil rate band available to the trust. Example At every 10-year anniversary, as long as they are in good health, a term assurance policy will have little or no value. This means that there won t be a periodic charge. EXIT CHARGE An Inheritance Tax liability may arise where capital leaves the trust. For example, a charge may arise where the trustees pay the policy proceeds to a beneficiary following a claim. This will usually only happen if the trustees paid an Inheritance Tax charge on the last 10-year anniversary or at the start of the trust, if that was less than 10 years ago. In either case, the rate of tax payable as an exit charge is currently a maximum of 6%. However, this rate only applies to the value of the assets in excess of the nil rate band available to the trust. Example David dies 8 years after the trust was created and the policy proceeds are paid to the trustees. An exit charge will not apply, as long as the trustees distribute the money before the next 10-year anniversary. DEATH OF THE SETTLOR Where Inheritance Tax exemptions cover the payment of premiums (or the transfer of an existing policy) to the trust, there should be no charge on the death of the settlor with respect to those exempt transfers. However, an Inheritance Tax liability could arise if either settlor dies within seven years of making a chargeable transfer into the trust. If the value of the gift together with the value of all chargeable transfers (including potentially exempt transfers that have subsequently become chargeable due to the settlor s death) made by the settlor in the seven years prior to the gifts in to the trust, exceeds the nil rate band applicable at the time of the settlor s death, Inheritance Tax will be due on the excess value. This will be at the death rate of up to 40%, however, any entry charges paid can be deducted from this liability. Taper relief should also be available to reduce the amount of tax payable for gifts made prior to three years before either settlor s death. DEATH OF A BENEFICIARY The death of a beneficiary under the Survivor s Discretionary Trust is very unlikely to have any Inheritance Tax consequences for the trust. REDUCED INHERITANCE TAX RATE FOR ESTATES LEAVING 10% OR MORE TO CHARITY A reduced rate of Inheritance Tax from 40% to 36% may apply where 10% or more of a deceased s net estate is left to charity. For details of whether this might be applicable to you please speak to your Financial Adviser or Solicitor.

8 8 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK GLOSSARY. Annual gift exemption Gifts in any one tax year that total 3,000 or less are exempt from Inheritance Tax. Where any part of the exemption is unused it can be carried forward to the following tax year. Chargeable lifetime transfer For Inheritance Tax purposes a gift (that is not otherwise exempt) made during life to a Survivor s Discretionary Trust. Where the value of the transfer is more than the available nil rate band Inheritance Tax is payable on the gift. Inheritance Tax A tax which may be payable on certain transfers of assets, for example, a gift. Inheritance Tax may also be payable on certain deemed or hypothetical transfers of assets, for example, on each 10 year anniversary of a Survivor s Discretionary Trust or on death. Life assured The person upon whose death (or diagnosis of a critical or terminal illness as defined in the policy (if included)) the amount of cover will become payable. The benefits will be payable on the first of the lives assured to die. Nil rate band The amount of an individual s estate, which is subject to Inheritance Tax at 0%. Potentially exempt transfer For Inheritance Tax purposes it includes a gift (that is not otherwise exempt) made during life to an individual or an Absolute Trust. No Inheritance Tax is payable at the time a potentially exempt transfer is made. Probate The authority given by the court to your personal representatives to deal with your estate following your death. Residuary estate The part of the estate of a deceased person that remains after the specific gifts, taxes, debts etc have been dealt with. Settlor The people putting the policy into the trust. Taper relief For Inheritance Tax purposes, the reduction of tax payable on a sliding scale should the settlor die between three and seven years following the making of a gift.

9 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK 9 IMPORTANT NOTES. We have written this guide to give you general information about placing your Legal & General protection policy in trust. It is not intended to replace legal advice. If this trust does not meet your needs then you should talk to your legal and your financial advisers. We have based the information in this guide on our understanding of the laws relating to trusts and Inheritance Tax as at 1st December Although we have made every effort to make sure that the information is accurate, we cannot take legal responsibility for any particular statements. This guide is based on our understanding of current law and HMRC practice, which can change. In preparing this guide we have assumed that only Legal & General s Survivor s Discretionary Trust is to be used in conjunction with Legal & General s joint life, first death protection policies. We can also provide deeds for joint life, first death policies where the survivor does not wish to receive the death benefit, Flexible (interest in possession) Trust deeds and Absolute Trust deeds. The information in this guide does not apply to business protection, Legal & General have separate literature for business protection. Please see your financial adviser for more details.

10 10 PROTECTION GIFT TRUSTS SURVIVOR S DISCRETIONARY TRUST PACK NOTES.

11 Legal & General Assurance Society Limited Registered in England and Wales No Registered office: One Coleman Street, London EC2R 5AA Authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. W /16